Daily Court Reporter - News Supreme Court of Ohio commemorates 30th anniversary of off-site program with three oral arguments heard in high school
Supreme Court of Ohio commemorates 30th anniversary of off-site program with three oral arguments heard in high school
Dan Trevas, Supreme Court of Ohio
The Ohio Supreme Court heard three oral arguments Wednesday, October 18th , off-site at Marietta High School.
The three cases considered on Wednesday were streamed live online at sc.ohio.gov and broadcast live on The Ohio Channel.
Below is a summary of the three arguments heard on Wednesday. Along with the descriptions in this article, the Office of Public Information has released in-depth summaries of the cases available online at: http://www.courtnewsohio.gov/cases/previews/17/1018/1018.asp#.Wd4m8zBryUk
State ex rel. Keith J. Kerns et al. v. Richard J. Simmers, Ohio Department of Natural Resources et al., Case no. 2016-1011
If a landowner objects to an Ohio Department of Natural Resources unitization order permitting oil and gas to be drilled underneath the landowner’s property, is that order a “taking” under the U.S. and Ohio constitutions?
Can a landowner objecting to a unitization order seek a writ of mandamus to halt the order, or must the landowner file a lawsuit challenging the order in common pleas court?
The case addresses whether portions of the law adopted by Ohio in the 1960s to control the exploration of oil and gas apply in the new era of hydraulic fracturing, also known as fracking. The Ohio Department of Natural Resources (ODNR) maintains that Revised Code Chapter 1509 was initiated in reaction to an “oil boom” in the mid-1960s that resulted in neighbors rushing to set up oil rigs and drill because prior law allowed the first driller to remove all the oil that was in an underground reservoir below many neighboring properties. R.C. Chapter 1509 established laws that allowed the state to set minimum spacing requirements between wells for safety purposes, and required the landowners to split the proceeds of the oil and gas brought up from below.
The state argues the law in place for the past 50 years applies to fracking, which goes much deeper into the ground than traditional oil and gas drilling and requires much larger tracts of lands to be economically feasible. The landowners contend that fracking isn’t the same as the 1960s’ circumstances because the oil and gas deep below in shale formations doesn’t naturally pool together in a reservoir, and the state can’t apply the current law to fracking.
Keith Kerns and six others collectively own 120 acres in Harrison County and own the oil and gas rights to the minerals in the Utica/Point Pleasant shale formation below it. In November 2014, Chesapeake Exploration LLC filed an application with the ODNR Division of Oil and Gas Resources Management to drill three horizontal wells into the Utica/Point Pleasant formation underneath 592 acres in Harrison County. The company wanted an order from ODNR to “unitize” the land, which was owned by several different people, to get the authority to drill under all of their properties. The company asked for the ODNR order because it didn’t have the consent of all the landowners to drill. Chesapeake maintained that if didn’t get the order to combine all the land into one unit, it would have to reduce the length of the wells, leaving 260 acres undeveloped. That would result in a “physical waste” of more than 7 billion cubic feet of natural gas that wouldn’t be collected through the wells.
The unitization process is described in R.C. 1509.28 and requires ODNR’s oil and gas resources division to conduct a hearing to consider the need for the unitization order. Kerns and the other owners of the 120 acres objected to their inclusion and didn’t want Chesapeake to drill underneath their land. They have leased the drilling rights to their land to another oil and gas company. However, they didn’t attend the hearing, but sent written objections.
Division Chief Richard Simmers issued the order, and by law, the order gives every landowner in the unit a one-eighth gross royalty from the recovered oil and gas with each landowner’s royalty based on the amount of surface acreage owned. The law requires the drilling company to pay the landowners regardless of whether or not they agreed to be in the unit.
Kerns appealed the order to unitize to the Ohio Oil and Gas Commission. The commission denied the appeal. Kerns also attempted to block the ODNR order in federal court, but the case was dismissed.
Chesapeake proceeded to construct a drilling pad on property near the objecting landowners and began drilling wells. Kerns asserts that Chesapeake injected more than 8 million gallons for water, sand, and chemicals into the formation to release the natural gas, and some of the substance is under his property and can cause damage.
Kerns is seeking a writ of mandamus from the Ohio Supreme Court for additional compensation arguing that the unitization order violated his constitutional rights under the U.S. and Ohio constitutions. He argues the order violates the landowners’ rights to exclusive possession of their property and that their property was taken by the state without due process. He is asking the Court to declare that ODNR took the land for public use and that they must follow the state law’s procedure, which requires having a jury assess the compensation that must be paid for the alleged taking.
The ODNR countered that R.C. Chapter 1509 gives Kerns the option of appealing the oil and gas commission’s ruling to the Franklin County Common Pleas Court in Columbus, and that it’s inappropriate for Kerns to request a Supreme Court order rather than proceeding through the process outlined in the law.
The Supreme Court agreed to hear oral arguments on the matter at a special off-site court session in Washington County.
State of Ohio v. Deandre Gordon, Case no. 2016-1462
Eighth District Court of Appeals (Cuyahoga County)
Was the outcome of a trial affected when the court combined two indictments for one trial and disqualified the defendant’s counsel of choice?
Tevaughn Darling and Deandre Gordon had been friends for more than 10 years. Darling thought of Gordon as his nephew. Darling celebrated his birthday on Jan. 9, 2015, with his girlfriend, Gordon, and others, and Gordon spent the weekend at Darling’s house.
The following Monday, Darling was shot in the foot and taken to the hospital. He first told Bedford Heights police he had been carjacked. He later told police in a video statement that Gordon shot him and he had lied initially to protect his friend. Darling said Gordon appeared from the bathroom at the house, pointed a handgun at Darling, and demanded money. When Darling indicated he thought Gordon was joking, Gordon shot him in the foot. Gordon took $5,000 from a dresser and $2,300 that Darling had in his pockets and fled. In the video, Darling told officers that Gordon might be found with his gang.
A Cuyahoga County grand jury indicted Gordon on counts of aggravated robbery, kidnapping, and felonious assault, all with the possibility of additional prison time for having a weapon (referred to as “firearm specifications”).
Gordon hired an attorney, Aaron T. Baker, to represent him. In April 2015, Gordon was released until trial with GPS monitoring after paying bail. As part of discovery, the prosecutor provided Baker with a DVD of Darling’s video statement. Baker said he showed the video to Gordon on May 20. The next day the video appeared on the social network Instagram. The footage was edited in a way that indicated Darling was giving information to police about the gang.
Darling reported the Instagram video post to the police and the prosecutor, adding that he had received related threats. As Darling left the prosecutor’s office, he said he encountered Gordon and two other men sitting in a car, and they made threatening comments.
The prosecutor brought the incident to the court’s attention, and argued that the Instagram accounts belonged to individuals Gordon knew. The trial court revoked Gordon’s bail and issued a warrant for his arrest. The grand jury issued a second indictment against Gordon in June 2015 charging him with intimidation of a crime victim or witness. He hired Baker as his attorney for this case as well.
Baker submitted a memo to the trial court, stating that he didn’t copy the video or give it to Gordon. The attorney noted that he planned to continue to represent Gordon, arguing that he wasn’t needed as a witness in the trial because his role related to the video was uncontested and he could stipulate to what happened instead of testifying.
On July 1, 2015, the trial court joined the two indictments together to consider the alleged crimes in one trial, and a week later disqualified Baker as Gordon’s attorney. The court agreed with the prosecutor that Baker was an essential witness to establish that he had shown Gordon the video, which was grounds to remove him as Gordon’s attorney.
With a different attorney, Gordon went to trial. The jury found him guilty of the robbery, kidnapping, assault, and weapons offenses, but concluded he wasn’t guilty of the intimidation charge. The court sentenced him to 10 years in prison.
Gordon appealed to the Eighth District Court of Appeals, which reversed Gordon’s convictions and ordered a retrial. The Cuyahoga County Prosecutor’s Office appealed the decision to the Ohio Supreme Court, which agreed to consider the case.
Ohio State Bar Association v. Lance T. Mason, Case no. 2017-0794
The Ohio Board of Professional Conduct recommends that former Cuyahoga County Common Pleas Court Judge Lance T. Mason be disbarred from practicing law in the state following a felony conviction for assaulting his wife in August 2014. Mason argues for an indefinite suspension, which is a lesser punishment that offers the possibility of working again as an attorney.
After more than eight years of marriage, Mason and his wife, Aisha Fraser, decided to separate in March 2014. Mason served as a judge on the Cuyahoga County Common Pleas Court at the time. The couple have two children. After the separation, they shared custody of the young children and often spent time together, going on dates and to church.
On Aug. 2, 2014, Judge Mason, Fraser, and their children attended a funeral for the judge’s aunt. During the drive to Fraser’s home after the funeral, Judge Mason and Fraser discussed their relationship. With the children in the backseat, Judge Mason, who was driving, became upset and hit Fraser in the head; banged her head against the car window, armrest, and dashboard; and bit her on her face. Fraser tried to leave the car, and Judge Mason pulled her back. She eventually escaped the vehicle but fell, and Judge Mason stopped the car, located her, kept striking her, and bit her again.
Leaving Fraser on the road, Judge Mason returned to his vehicle and drove to his house with the children. He called his sister, asking her to pick up the children because he planned to shoot himself. Shaker Heights police arrested Judge Mason. Fraser was hospitalized and required surgery to repair a fracture under her eye.
When the judge was indicted, the Ohio Supreme Court disqualified him from his judicial position. On Sept. 16, 2015, the trial court accepted Mason’s guilty plea to attempted felonious assault and domestic violence, and sentenced him to a 24-month prison term and a 6-month jail term to be served concurrently. Mason was released on June 27, 2016.
The Ohio State Bar Association investigated charges against Mason alleging that he violated attorney and judicial ethical rules in the state. After considering the bar association’s complaint, reviewing the evidence, and conducting a hearing, a panel of the professional conduct board concluded that Mason violated the judicial conduct rule that requires judges to promote public confidence in the judiciary’s independence, integrity, and impartiality. The panel also found that Mason’s illegal act reflected poorly on his trustworthiness and his fitness to practice law.
The professional conduct board’s report to the Supreme Court lists the following mitigating factors, which may be considered for a less-severe sanction:
no prior disciplinary record
cooperative during disciplinary investigation
removed from his position as judge
incarcerated for his actions
penalized with a $150,000 settlementof a civil case Fraser filed against him
apologized to Fraser in open court during the civil case
submitted 37 character reference letters
The report also identifies several aggravating circumstances, which may be considered to impose a more severe punishment. The board notes the vulnerability of Mason’s former wife and his children and the harm Mason’s actions caused. Also, Mason didn’t adequately explain why he assaulted his wife; he hasn’t indicated that the violent conduct won’t happen again; and, although he has met with a psychologist, psychiatrist, social worker, and pastor, he “has not fully engaged in the redemptive process,” the report states.
Noting that the Supreme Court holds judges to the highest ethical standards, the board recommends that the Supreme Court disbar Mason, which means he will never be permitted to practice law in Ohio again.
Mason, who has been a county prosecutor, state representative, and state senator, submitted objections to the board’s proposed punishment of disbarment. When one side in a disciplinary case objects to the board’s findings or recommendations, the Ohio Supreme Court agrees to hear oral arguments in the matter. The disciplinary case will be heard Oct. 18 in Marietta during the Court’s Off-Site Court Program in Marietta.
Mason argues that the panel didn’t adequately inform the board about the testimony given by five of his witnesses. He describes testimony from his father’s first cousin, who is also a pastor; his sister; another relative; a former employee; and a former teacher and principal, who worked with Mason on legislation and was later appointed to oversee Mason’s visitations with his children. The witnesses spoke about his good moral character, the one-time nature of the assault, his statements taking responsibility for his actions, and his commitment to his children both before and after the incident. Because the panel didn’t give this information to the board, the board wasn’t able to make an informed decision about his punishment, Mason contends.
“Nothing could be more misleading to the Board than the Panel’s obvious abdication of its responsibility to report relevant facts provided by these witnesses during their testimony,” his brief to the Court states.
Mason also asserts that the panel didn’t address the substance of the character letters sent on his behalf, which showed how isolated the assault was and reflected his genuine remorse for his actions. He points to his voluntary and continuing participation in counseling as well. In addition, all evidence, including an email from Fraser, supporting the value of permitting Mason to continue as an attorney “was ignored and not reported to the Board,” the brief argues.
Mason notes that, leading up to the assault, his father died, then his mother died, his house flooded twice and became infested with rats, his daughter has health issues related to Down syndrome, and a few days before the assault he had gone to the local hospital’s emergency room with chest pains.
“[T]he record simply does not support the aggravating factors found by the Panel but instead support mitigating factors which should serve to temper the sanction imposed by this Court,” his brief states.
Mason points out that the bar association proposed an indefinite suspension to the board, and he asks the Court to impose that punishment with credit for the time he has been suspended since his conviction in September 2015.
Date Published: November 1, 2017